Thursday, 8 November 2012

Latest Judicial Cases - Supreme Court and Delhi High Court



Transfer of Property Act, 1882 - Sections 106, 108; West Bengal Premises Tenancy Act, 1956 - Sections 13, 13(1), 13(6); Rajasthan Premises (Control of Rent and Eviction) Act, 1950 - Section 13(1); Uttar Pradesh Cantonment Rent Control Act, 1952 - Section 14; East Punjab Urban Rent Restriction Act, 1949 - Section 13(2); Kerala Buildings (Lease and Rent Control) Act, 1965 - Section 11(4) (Supreme Court)
An appeal was filed against the judgment passed by the High Court of Calcutta whereby Civil First Appeal filed by the Respondent-tenant was allowed, the judgment and decree passed by the trial Court set aside and the suit for eviction filed by the Plaintiff-Appellant against the Defendant-Respondent was dismissed. Whether the alterations which the Respondent-tenant was found by the Courts below to have made equivalent to erection of a "permanent structure" within the meaning of Clause (p) of Section 108 of the Act. Held, the structure was not a temporary structure and the alteration made by the tenant fell within the mischief of Section 108(p) of the Transfer of Property Act and, therefore, constituted a ground for his eviction in terms of Section 13(1) (b) of the West Bengal Premises Tenancy Act, 1956. It was thus immaterial whether the structure had resulted in creating additional usable space for the tenant who carried out such alteration and additions. If addition of usable space was ever intended to be an essential requirement under Section 108(p) of the Act, the Parliament could have easily provided so. Nothing of this sort was done in Section 13(1) (b) of the State Act, which clearly showed that addition of space was not the test for determining whether the structure was permanent or temporary. Cases referred to were: Brijendra Nath Bhargava and Anr. v. Harsh Wardhan and Ors, Om Prakash v. Amar Singh and Ors., Waryam Singh v. Baldev Singh.

Hence, appeal was allowed and the order passed by the High Court was set aside and that of the trial Court was restored.

2.      Subulaxmi Vs. M.D., Tamil Nadu State Transport Corporation and Anr. - Nov 1 2012

Motor Vehicles Act, 1988 - Sections 166, 171 (Supreme Court)
Appellant as claimant filed an application under Section 166 of the Motor Vehicles Act, 1988 before the Motor Accidents Claims Tribunal claiming Rs. 6, 50,000/- as compensation for the injuries sustained by her in a motor vehicle accident. High Court rejected the appeal filed by Respondent No. 1 and allowed the cross-objection in part. Being dissatisfied, the claimant had preferred the present appeal for enhancement of the amount of compensation. Whether, the High Court was justified in awarding compensation on a singular head relating to permanent disability and loss of future earnings. Held, if the victim of an accident suffered permanent or temporary disability, then efforts should always be made to award sufficient compensation not only for the physical injury and treatment, but also for the pain, suffering and trauma caused due to accident, loss of earnings and victim's inability to lead a normal life and enjoy amenities, which she would have enjoyed but for the disability caused due to the accident. Thus, the view expressed by the High Court on this score was not sustainable. As far as the pain and suffering and loss of amenities were concerned, the grant of sum of Rs. 1, 00,000/ was appropriate. In case of medical expenses, extra nourishment, transport charges and loss of earning during treatment, the amount awarded by the High Court was allowed to remain as such. Thus, the amount on the aforesaid scores would come to Rs. 45,000/-. Regarding future replacement of artificial limbs and other medical expenses were concerned, the enhancement to Rs. 1, 25,000/- was appropriate. The High Court had declined to award interest on the enhanced sum. Section 171 of the Act dealt with award of interest which stated that, where any Claims Tribunal allowed a claim for compensation made under this Act, such Tribunal might direct that in addition to the amount of compensation simple interest should also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf. Thus, the High Court had made a mistake in not granting interest on the increased sum and the interest awarded by the tribunal was just and proper therefore should carry interest at the rate 9% per annum. Cases referred to were: Abati Bezbaruah v. Dy. Director General, Geological Survey of India and Anr., Sarla Verma v. D.T.C.

Hence, appeal was allowed.

3.      Thakker Shipping P. Ltd. Vs. Commissioner of Customs (General) - Oct 30 2012

Customs Act, 1962 - Sections 108, 129, 129A, 129A(1), 129A(2), 129A(3), 129A(4), 129A(5), 129A(6), 129A(7), 129A(1B), 129(B), 129D, 129D(1), 129D(2), 129D(3), 129D(4); Central Excise Act, 1944 - Sections 35, 35B, 35C, 35EE, 35G, 35H, 35H(1); Limitation Act, 1963 - Sections 5, 29(2); Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992 - Section 4(2); Custom House Agent Licencing Regulations, 2004 - Regulation 23 (Supreme Court)
A ship was found to contain assorted electrical and electronic goods of foreign origin. The clearance of the goods was handled by M/s Thakker Shipping P. Ltd. Appellant, referred to as the Custom House Agent. The Commissioner made an application under Section 129D (4) of the Act before the Tribunal. As the said application could not be made within the prescribed period and was delayed by 10 days, an application for condonation of delay was filed with a prayer for condonation. The Tribunal rejected the application for condonation of delay and consequently dismissed the appeal. Hence, the present appeal. Whether it was competent for the Tribunal to invoke Section 129A(5) of the Act where an application under Section 129D(4) had not been made by the Commissioner within the prescribed time and condone the delay in making such application if it was satisfied that there was adequate cause for not presenting it within that period. Held, in Fairgrowth Investments Ltd., the question raised before this Court was whether the Special Court constituted under the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992 had power to condone the delay in filing a petition under Section 4(2) of the Act. Dealing with the said question, the Court considered various provisions of the Limitation Act, including Sections 5 and 29(2), and ultimately it was held that the provisions of the Limitation Act had no application in relation to a petition under Section 4(2) of the 1992 Act and the prescribed period was not capable of being extended by the Court. Considering the judgments passed by the Court, it was held that it was competent for the Tribunal to invoke Section 129A (5) where an application under Section 129D (4) had not been made within the prescribed time and condone the delay in making such application if it was satisfied that there was sufficient cause for not presenting it within that period. Cases referred to were: CCEx. Mumbai v. Azo Dye Chem, Commissioner of Customs and Central Excise v. Hongo India Pvt. Limited and Anr., General Mills Company Limited v. State of Rajasthan and Ors.

Hence, the appeal failed and it was dismissed.

4.      Veena Kalra Vs. Union of India & Anr. - Oct 31 2012

Companies Act, 1956 - Sections 10FD, 10E(2A), 642; Company Law Board (Qualifications, Experience and Other Conditions of Service of Members) Rules, 1993 (Delhi High Court)
A writ petition was filed in public interest seeking a direction to the Respondents to make necessary and suitable amendments / modifications implementing the Guidelines laid down by the Supreme Court in Union of India vs. R. Gandhi, President, Madras Bar with respect to selection and appointment to the post of Member (Technical) in Company Law Board (CLB). A writ of quo warranto for quashing the appointment of Respondent No.5 as Member (Technical) of the CLB in pursuance to the Office as being contrary to the Guidelines was also sought. Whether, the selection and appointment of the respondent No.5 as Member (Technical) of the CLB in contravention of the Guidelines laid down in the judgment was liable to be quashed. Held, present petition was a petition filed in public interest seeking a writ of quo warranto i.e. of recalling the appointment of the respondent No.5 to the post of Member (Technical) of CLB. The Supreme Court in Dr. Duryodhan Sahu vs. Jitendra Kumar Mishra and in B. Srinivasa Reddy vs. Karnataka Urban Water Supply and Drainage Board Employees Association had held Public Interest Litigations to be not maintainable in service matters. However, in N. Kannadasan Vs. Ajoy Khose the Supreme Court had made out an exception and held that an appointment to a public office may be challenged in public interest even where the Petitioner did not claim any right of appointment in himself; however the same could be done by showing violation of public office by a person not qualified to occupy the same or having been appointed without following the procedure prescribed in law. A writ of quo warranto did not lie if the alleged violation was not of a statutory provision. Writ of quo warranto in the present case was sought by contending the Respondent No.5 to be not qualified. However, once the Respondent No.5 was qualified in terms of the Rules framed for the said purpose, no writ of quo warranto could be issued and particularly when there was no challenge even to the said Rules. The question, as to whether what had been held by the Supreme Court in relation to the qualifications of the Members of NCLT and NCLAT, applied to the Members of CLB, could be decided only by challenging the Rules providing for the qualification of the Members of the CLB.

Hence, the present petition was dismissed.

5.      Oil and Natural Gas Corporation Ltd. Vs. "Maryada", The Weekly News Magazine & Ors. - Oct 31 2012

Civil Procedure Code - Order 39 Rules 1, 2 (Delhi High Court)
The Plaintiff was a Government of India Undertaking engaged in exploration and production of Natural gas and oil in the country. Defendant No.2 published a magazine from Uran in District Raigad of Maharashtra. Defendant No. 3 claimed to be a social worker, whereas Defendant No. 4 printed the magazine 'Maryada'. Defendant No. 3 wrote certain articles in various issues of Maryada, alleging corruption in the project of ONGC at Uran. The case of the Plaintiff was that the Defendants had defamed it by publishing such uncorroborated defamatory allegations, as a result of which its reputation was seriously damaged. Whether a corporation could sue for damages on account of defamation and if so, what was the scope of its right in this regard? Whether the articles / letters written published by the Defendants could be said to be defamatory to the Plaintiff Company. Held, none of the allegations contained in the articles published and the letters sent by the Defendants could be said to be defamatory to the Plaintiff as a Corporation, though it could hardly be disputed that they were defamatory to the officers, named therein, in case they were untrue. No one on reading all those articles and letters would consider ONGC, as a Company to be indulging in corruption. The defamation of the officers of a corporation, did not, per se, amount to defamation of the corporation itself. Dishonesty by a Corporation was altogether different from dishonesty by its officers. If a person said that a Company was indulging in corrupt or dishonest practices with the Government Agencies, its business associates, its shareholders or its employees that would be defamatory to the Company. But, if it was said that its officers/directors were indulging in such practices, qua the Company itself, that would not be a defamation of the Company. Since the articles published and the letters written by the Defendants could not be said to be defamatory to the plaintiff-company, it had no legal right to seek damages from the Defendants. The officers of ONGC named in the articles and letters had not even joined as Co-Plaintiffs. The suit, therefore, was liable to be dismissed on this ground alone. Cases referred to were: Indian Express Newspapers (Bom.) Pvt. Ltd. V. Jagmohan, Metroplitan Saloom Ombinus Co. Ltd. v. Hawkins.

Hence, suit was dismissed.

Source:- Think Legal

With Regards
Prakash Verma
E. ID: